Q -- Handcuffing People During Frisks

Question

Hi Dale,

If you have a minute or two, a question was brought up about handcuffing passengers in a vehicle. Here's the scenario:

An officer stops a vehicle with multiple occupants and develops reasonable suspicion to search for weapons (let’s assume he does have reasonable suspicion). Can an officer handcuff the occupants of a vehicle on reasonable suspicion alone only to search for weapons?

I guess the case doesn't necessarily have to deal with passengers of automobiles. But if an officer fears someone is armed, can he/she handcuff the person to simply search for weapons or have the courts ruled that once a person is handcuffed they are in custody. I remember you lectured about this very topic but I don’t recall your opinion.

Thanks for your time.

Answer

I get this question a lot -- so let me make a short answer long.

First off -- your safety is most important. If you feel that you must handcuff people present to go home at night, then do it.

BUT -- you must remember that handcuffing looks like "custody" or "arrest" to a court / judge and that requires probable cause -- so let me give you some legal advice.

1. Prior to handcuffing, tell the people they are not under arrest or in custody.

2. As soon as you have frisked, unhandcuff the people, if possible.

3. If you discover important evidence as a result of this procedure YOU must convince the court of the unusual circumstances that made it necessary to handcuff. This is not easy in lots of courts, so be prepared to tell the story to make the judge feel as if he / she were there.

And be prepared to explain that whenever you have found it necessary to do this, you ALWAYS and immediately unhandcuff the people when you determine that nobody has a weapon that can hurt you.

Best -

DA